### FILED FEB. 27, 2014 In tbeOffice oftbeClerk ofCourt W A State CourtofAppeals, Division III

INTHE COURTOFAPPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 30945-2-III ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) JORGE ENRIQUERODRIGUEZ, ) ) Appellant. ) ANTOSZ,

### J..

- Jorge EnriqueRodriguez appeals his conviction for felony violation ofa no-contact order. He argues 

### (l)the trial court erred by failing to instruct thejurythat ithadto beunanimous as to the specific act constitutingtheviolation, and (2) inadequate evidence supportsthe trial court's fmding thathehas the currentorfuture ability topayhis legal fmancial obligations. Additionally, in a statement ofadditional grounds for review (SAG), Mr. Rodriguez alleges sentencing error and inadequate representation ofcounsel. Finding no reversible error, we affirm.

•Judge JohnM. Antosz is serving asjudgeprotempore ofthe CourtofAppeals pursuanttoRCW 2.06.150.No. 30945·2-111 State v. Rodriguez
FACTS During September 2011, Jorge Rodriguez and DianaHouck lived at his house at 115 North 7th Avenue, Pasco, Washington. On September 9,2011, Mr. Rodriguez was arrested and charged for domestic violence assault involving Ms. Houck. The court subsequently issued a no-contact order prohibiting Mr. Rodriguez from coming within two blocks ofhis house and contacting Ms. Houck. On September 25,2011, City of Pasco Police Officer Randall Roach responded to a domestic violence call from Ms. Houck. OfficerRoachproceeded to 115 North 7th Avenue and found Mr. Rodriguez asleep at the residence. OfficerRoach arrested Mr. Rodriguez for violation ofthe nocontact order. The State charged Mr. Rodriguez by amended information with felony violation ofa no-contact order. Attrial, Mr. Rodriguez testified that after his September 9 arrest, he communicated with Ms. Houck about the possibility ofher bailing him out of jail. Mr. Rodriguez also testified that on September 12,2011, a police officer conducted a civil standby allowing Mr. Rodriguez to collectpersonal items from his house while Ms. Houck was present. As to the September 25,2011 incident, he explainedthatMs. Houck had permitted him to go to his house to give medicine to his dog because she was unable to do so. He also testified that he needed aplace to stay after drinking with friends.
2No. 30945-2-111 State 

### v. Rodriguez
Ajury found Mr. Rodriguez guilty as charged. At sentencing, the court imposed a mid-range standard sentence. 

### It also imposed $2,876.75 in legal financial obligations. The court made no oral inquiry or statement on Mr. Rodriguez's ability to pay. However, section 2.5 ofthejudgment and sentence stated:The courthas considered the total amount owing, the defendant's past, present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court finds: [X] Thatthe defendant is an adult and is not disabled andtherefore has the ability or likely future ability topay the legal financial obligations imposed herein. Clerk's Papers (CP) at 

### 12. Mr. Rodriguez appeals, claimingthe court erred in failing to give a unanimity instruction and in entering a finding onhis ability to pay his legal financial obligations. ANALYSIS 

### Mr. Rodriguez first contends the trial court should have given a unanimity instruction because the conviction could have been based on several acts, which included (1) speaking to Ms. Houck, (2) going to the protected address, (3) and/or being found asleep in the house by police, withthejurypotentially notbeingunanimous about anyone ofthese alternatives. 3No. 30945-2-111 State v. Rodriguez
The question of juryunanimity is an issue ofconstitutional magnitude that can be raised initially on appeal. CONST. art. I, 

### § 21; RAP 2.5(a)(3); State 

### v. Fiallo-Lopez, 78 Wn. App. 717, 725, 899 P.2d 1294 (1995). This assignment oferror is reviewed de novo. State v. Bradshaw, 152 Wn.2d 528,531,98 P.3d 1190 (2004). A defendant may be convicted only when a unanimousjury concludes thatthe defendant committed the criminal act charged in the information. State 

### v. Kitchen, 110 Wn.2d 403,409, 756 P.2d 105 (1988). When the Statepresents evidence ofmultiple acts ofsimilar misconduct, anyone ofwhich could form the basis ofthe count charged, the State must either elect which ofthese acts it relies on for a conviction orthe trial court must instructthejurythat all 12jurors must agree thatthe State has provedthe same underlying act beyond a reasonable doubt. State 

### v. Coleman, 159 Wn.2d 509,511-12, 150 P.3d 1126 (2007); Kitchen, 110 Wn.2d at411. This ensures a unanimous verdict on
one criminal act. Coleman, 159 Wn.2d at 512. Where there is neither an election nor a unanimity instruction in a mUltiple acts case, a constitutional error occurs. Coleman, 159 Wn.2d at 512; Kitchen, 110 Wn.2d at 409,411. This type oferrorrequires a new trial unless shown to be harmless beyond a reasonable doubt. State v. Camarillo, 115 Wn.2d 60,64,794 P.2d 850 (1990).

4No.30945-2-III State 

### v. Rodriguez
The State correctly points outthat no election or unanimity instruction is needed if the defendant's acts were part ofa continuing course ofconduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d453 (1989). Itthen asserts thatthe separate acts citedby Mr. Rodriguez constitute a continuing course ofconductbecause they involved the same victim, the same no-contact order, and occurred around the same time period. It argues these acts "represent a continuing course ofconduct whereby [Mr. Rodriguez] reclaimed theirresidence for himselfin violation ofthe no contact order." Resp't's Br. at 8. Both sides overlook the fact thattwo ofthe separate acts occurredpriorto the charging date. The charging document alleged that on or about September 25,2011, 

### Mr. Rodriguez, with knowledge that the Pasco Municipal Court had issued a no-contact order, knowingly violated its provisions. The State presented evidence that the PascoMunicipal Court issued a no-contact orderprohibiting Mr. Rodriguez from having any contact with Ms. Houck orentering orremaining within two blocks ofhis house, and that subsequent tothat order, on September25,2011,police found Mr. Rodriguez asleep at his house. Thejurywas then instructed thatthe relevant charging date was September 25,2011. Instruction 10 stated: "(1) That on or about September25,2011, there existed a nocontact order applicable to the defendant; (2) Thatthe defendant knew ofthe existence of this order; (3) That on or about said date, the defendant knowingly violated a provision of
5No. 30945-2-111 State 

### v. Rodriguez
this order." CP at 37. In view ofthe information and thejury instructions, thejury could not have consideredthe earlier incidents cited by 

### Mr. Rodriguez because they occurred priorto the charging date. Accordingly, a unanimity instructionwas not needed. Citing State v. Bertrand, 165 Wn. App. 393, 404, 267 P.3d 511 (2011), Mr. Rodriguez next argues that the trial court erred by finding that he hadthe current or likely future ability to pay the legal financial obligations imposed by the court because nothing in the record supported the finding. In his reply brief, he specifies that he only objects to the discretionary legal financial obligations of$I,676.75 in court costs. The distinction between mandatory and discretionary legal financial obligations is important. The legislature has divested courts ofthe discretion to consider a defendant's ability to paywhen imposing mandatory legal financial obligations. Forvictim restitution and assessments, DNA1collection fees, criminal filing fees, and appellate costs, a defendant's ability to pay is not considered. State v. Curry, 62 Wn. App. 676, 680, 814 P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829P.2d 166 (1992); State v. Thompson, 153 Wn. App. 325, 336, 223 PJd 1165 (2009); RCW 10.73.160(3). However, unlike mandatory obligations, ifa court imposes discretionary legal financial obligations, itmust consider the defendant's present or likely future ability to pay. State v. Lundy, 176 Wn.

1Deoxyribonucleic acid. 

### 6No.30945-2-III State 

### v. Rodriguez App. 96, 103,308 P.3d 755 (2013). Thus, before making such a finding, the trial court must '" [take] into account the financial resources ofthe defendant and the nature ofthe burden'" imposed by the legal financial obligations. Bertrand, 165 Wn. App. at 404 (quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116,837 P.2d 646 (1991)). We review a trial court's determination ofan offender's financial resources and ability to pay under the clearly erroneous standard. Bertrand, 165 Wn. App. at 404 n.13 (quotingBaldwin, 63 Wn. App. at 312). A finding is clearly erroneous if, although there is some evidence to support it, review ofall ofthe evidence leads to a "definite and firm conviction that a mistake has been committed." Wenatchee SportsmenAss'n v. Chelan County, 141 Wn.2d 169,176,4P.3d 123 (2000). While the court did not address Mr. Rodriguez's ability to pay during the sentencing hearing, its finding is supported by the record because Mr. Rodriguez testified that he owns a house. The State's burden for establishing whether a defendanthas the present or likely future ability to pay discretionary legal financial obligations is a low one. In Baldwin, it was met by a single sentence in a presentence report in which Mr. Baldwin described himselfas "employable." Baldwin, 63 Wn. App. at 311. Thus, evidence that Mr. Rodriguez owns a house adequately supports the finding in thejudgment and the sentence that he had the ability or likely future ability to pay the ordered legal financial
7No. 30945-2-III State v. Rodriguez obligations. STATEMENT OF ADDITIONAL GROUNDS FORREVIEW In his pro se SAG, Mr. Rodriguez contends "there is confusion" regarding his judgment and sentence, but fails to specifY the nature ofthe alleged error. He also contends that he "needs to set up an [sic] court date to explain his evidence for his case" because "counsel did not call for any witnesses and didn't show all the evidence for his case." SAG at L He claims the evidence would show that an assault charge was dropped and attaches a document from the Pasco Municipal Court indicating an assault charge was dismissed on December 30,2011, due to witness unavailability. These claims either involve matters outside the record, State v. McFarland, 127 Wn.2d 322, 335,338 n.5, 899 P.2d 1251 (1995) (matters outside record must be raised in personal restraintpetition), orare insufficiently argued. RAP 10.10(c). Although RAP 10.10(c) states that referencetothe record and citation to authorities are not required in an SAG, the rule also states that the appellate courtwill not considerthe SAG for review ifit does not inform the court ofthe nature and occurrence ofthe alleged errors. Here, Mr. Rodriguez fails to adequately describe the nature and occurrence ofany alleged
errors as required by RAP 10.10(c). Accordingly, we are unable to address his claims.

8No. 30945-2-111 State v. Rodriguez
We affinn the trial court. A majority ofthepanel has detennined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuant to RCW 2.06.040.

# An**tos$7ct~** WE CONCUR:

Siddoway, A.C.J. 

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